AU Watch

Introduction to international refugee law: Background and context

1 History of population movements: migrants, immigrants, internally displaced persons and refugees

Main Debates

  • Is there a human right of freedom to move to another country?
  • Is migration an asset to, or a burden for, sending and receiving states?
  • What is the relationship between past movements and present migration policies?

Main Points

  • Unlimited exit v. limited entry rights
  • Trade-offs between regular and irregular routes
  • Migration as a pervasive feature of the human experience

Main Debates

  • Should different types of migration – regular, unauthorized, and forced – be subject to different forms of control?
  • Could freedom of movement be the rule again?

Main Points

  • Sociological, demographic, historical and legal perspectives on migration

Understanding fundamental terms of reference:

  • International migrant
  • Asylum seeker
  • Refugee
  • Undocumented (illegal) migrant
  • ‘Person of concern’ to UNHCR
  • International law guarantees exit but remains silent on entry (except for refugees)

Main Debates

What are the causes of migration?
Is the model of push-pull factors adequate?
Can migratory processes be managed?
Does migration management simply redirect or reclassify migrants?
Main Points

Absence of a single theory explaining migration
The start and the continuation of a migratory process may have different causes
Migration management:

Varied tools
Short v. long term perspectives
Often unexpected results

Main Debates

  • Is the boat really full? Where?
  • Should former countries of origin ‘repay’ their historic debts by receiving migrants?
  • Does the European Union need an immigration policy. If yes, what sort of?

Main Points

  • The proportion of migrants among the population is only slightly increasing in recent decades and is close to 3%
  • Transformation of many European states from sending to receiving states

Lessons from historical data:

  • Closing one entry door leads to opening of another
  • Migration cannot be halted
  • The migration to the global South competes in importance with the migration to the global North

2 The legal and institutional framework for refugee protection

Main Debates

  • What impact do international obligations have on national sovereignty and migration control?
  • What are the legal and moral duties of host states?
  • Are the expanding refugee definitions and the rise of new actors an improvement or not?

Main Points

  • Three major phases of the evolution of the international refugee legal regime
  • Policy responses to different types of migration
  • Universal and regional definitions

Soft Law

UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’, HCR/IP/4/Rev.1, 1979, paras. 1–4.

Treaties

International

  1. UNHCR, Convention and Protocol Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150.

Expansion by the 1967 Protocol
Treaties

International

OHCHR, Protocol Relating to the Status of Refugees, 4 October 1967, 606 U.N.T.S. 267.
Soft Law

UNHCR, Statute of the Office of the United Nations High Commissioner for Refugees, UN General Assembly Resolution, A/RES/428 (V), 14 December 1950.
UNHCR, ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees’, HCR/IP/4/Rev.1, 1979, paras. 6–11.

Editor’s Note

This section traces the broadening of the refugee definition and the expansion of major actors (governmental and non-governmental) that has occurred from early 1970’s onwards. While the 1951 Geneva Convention provides the core legal definition of ‘refugee’ and UNHCR remains the dominant actor in international refugee protection, readers should consider whether the appearance of new definitions undermines the consistency of the regime or leads to a more responsive international environment.

3 UNHCR and other actors relevant to international asylum law

Main Debates

How can and should UNHCR best fulfil its supervisory responsibility for the 1951 Convention today?

To what extent should the role of UNHCR extend beyond protection to include humanitarian aid and/or return and reconstruction?

What procedural standards does UNHCR apply in its expansive role in status determination?

Has, and can, UNHCR put up effectively maintained standards in the face of restrictive tendencies in Europe and elsewhere?

Does the extension of the mandate to internally displaced persons enhance or diminish UNHCR’s protection and support potential?

Main Points

Upholding protection principles in a context of complex asylum-seeker and migratory movements across the world today

UNHCR conducts status determination in over 70 countries with significant variations in practice and standards

Necessity of networks for co-operation and engagement

Dependency on major donor governments

Treaties

International

Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150; see in particular Article 35.

Protocol Relating to the Status of Refugees, 4 October 1967, 606 U.N.T.S. 267.

Soft Law

Statute of the Office of the United Nations High Commissioner for Refugees, UN General Assembly Resolution, A/RES/428 (V), 14 December 1950.

UN General Assembly Resolution, 58/153, 22 December 2003, implementing actions proposed by the United Nations High Commissioner for Refugees to strengthen the capacity of his Office to carry out its mandate, 22 December 2003, para. 9.

Main points

  • The specific reasons for establishing a parallel system for the protection of Palestinian refugees
  • Complementarity vs. risk of duplication between different actors in the international protection sphere
  • Legitimacy, independence and impartiality
  • Scarcity of donor resources; and their most effective use

Main debates

  • What is the interplay between the mandate of UNRWA and that of UNHCR with respect to Palestinian refugees worldwide?
  • How have the challenges facing UNRWA evolved over time?
  • What if a protected person voluntarily leaves or is forced to leave the UNRWA territory?
  • How can civil society and particularly non-governmental organisations complement and strengthen the actions of states and international organsiations in refugee protection activities?
  • What is the role of NGOs as (1) contributors to promoting high legal standards, (2) service providers and/or (3) monitors in the international protection system?

4 The context of international refugee protection: internal displacement, statelessness, environmentally induced migration

Editor’s note

The number of internally displaced, who frequently flee persecution but do not cross an international border, is greater than the number of refugees. Stateless persons, like refugees, often face deprivation of fundamental rights and require assistance from states of which they are not nationals. Environmentally induced migration is involuntary and in case of sudden events, like tsunamis or volcano eruptions, it may lead to precipitous large scale movements. Although traditional refugee law does not generally address these phenomena, all three of them have links to refugee movements and need to be addressed by those studying and assisting refugees.

Main Debates

  • Is the extension of UNHCR’s mandate sufficient or is there a need for a specialized agency?
  • Should there be a separate global treaty for the protection of internally displaced persons?
  • Does the emergence of ”responsibility to protect” improve the situation of the internally displaced?
  • Should conflict induced displacement be treated differently from other types of involuntary domestic migration?

Main Points

  • Emergence of IDPs as a category of individuals in need of protection in the 1990s
  • International border as a defining criterion
  • Challenge of implementing human rights treaties to offer sufficient protection for the internally displaced

Treaties

  1. African Union, Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention), adopted on 23 October 2009 and entered into force on 6 December 2012.

Soft Law

  1. UN Commission on Human Rights, Guiding Principles on Internal Displacement, UN doc. E/CN.4/1998/53/Add.2 (11 February 1998).
  2. ’London Declaration of International Law Principles on Internally Displaced Persons’, International Journal of Refugee Law, vol. 12, no. 4 (2000), p. 672. 

Main Debates

  • What is the link between statelessness and forced displacement?
  • Is statelessness determination a pre-condition of providing international protection to stateless persons?
  • What are the common elements of and differences between refugee status determination and statelessness determination? What are the pros and cons of a joint determination of these conditions?
  • Can/should a distinction be drawn between ’in situ’ and ’migrant’ stateless persons and what does this mean in terms of states’ obligations?
  • How has the concept of de facto statelessness been (mis-) used and why is this contested? Are there any specific arguments for its continued use?

Main Points

  • Human rights law addresses rights of stateless persons and right to nationality, but UN statelessness conventions form the only legal regimes specifically tailored towards statelessness
  • Statelessness determination as cornerstone of protection for stateless persons in migration context; challenge of proving the absence of nationality
  • The meaning of statelessness-specific protection as an emerging paradigm of international protection
  • Stateless persons may be in ‘own country’: addressing nationality problem vs. providing (international) protection
  • Forced displacement as cause and consequence of statelessness; heightened vulnerability of stateless persons to human rights abuses
  • State sovereignty in regulation of nationality constrained by principal of avoidance of statelessness
  • Powerful imagery of the notion of de facto statelessness vs. lack of an international legal regime

Main Debates

Is environmentally induced migration “forced migration”? Does it matter if the environmental change is slow or abrupt, human-induced or the result of dominantly natural processes?

Should environmentally induced migrants qualify as refugees? Under what regime (the existing or a new one, specifically tailored to “environmentally induced refugees”)?

Main Points

Environmentally and climate change induced migration as forced migration

Access to complementary or alternative forms of international protection

UNHCR Documents

UNHCR, ‘Climate change, natural disasters and human displacement: a UNHCR perspective’, Policy Paper, August 14, 2009. Climate change, natural disasters and human displacement: a UNHCR perspective

Readings